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This case involves a challenge by the Kansas National Education Association (KNEA) to the Kansas Board of Regents’ proposed policy giving ownership of faculty intellectual property to the universities at which they work. In 2004, a Kansas appellate court ruled against the KNEA, stating that the Regents were not required to engage in bargaining with the union on copyright ownership issues because such a practice would conflict with federal law’s provision that an author may negotiate away his or her intellectual property rights but cannot be required to do so. The appellate judge reached this decision by assuming that the faculty members’ intellectual property was work-for-hire, and thus the property of the University.

The KNEA appealed the case to the Kansas Supreme Court, and on July 13, 2005, the AAUP filed an amicus brief (pdf) in that court on the narrow issue of faculty members’ ownership of their own copyrights. The AAUP argued that the work-for-hire doctrine does not include faculty intellectual property, noting that federal appellate court decisions, traditional academic practices, and notions of academic freedom all point to faculty retaining ownership of their work as original authors. The brief highlighted AAUP’s Statement on Copyright, which emphasizes that preservation of academic freedom requires that faculty members control their own intellectual property. A copy of the brief is available (.pdf).

Status: In a victory for AAUP, on November 10, 2005 the Kansas Supreme Court ruled that intellectual property rights are not simply assumed to be work-for-hire belonging to the university and can be a subject of collective bargaining. Finding the appellate court’s reasoning to be an “incorrect application of federal copyright law,” the Kansas Supreme Court concluded that to assume universities’ blanket ownership of faculty intellectual property was “too big a leap.” Instead, the court recognized that the question of ownership of faculty work is a complex one, depending on a careful analysis of the employment relationship and the reason for and method of creation of the work itself. The court cited the AAUP Statement on Copyright, and recognized that faculty intellectual property ownership cannot be treated simply as the work of an employee belonging to an employer, but rather “will necessarily involve not just a case-by-case evaluation, but potentially a task-by-task evaluation.” The decision is available at http://www.kscourts.org/kscases/supct/2005/20051110
/91305.htm.

The court returned the case to the district court, which returned it to the Public Employee Relations Board (PERB) “for additional findings regarding whether ownership of intellectual property is a condition of employment” and therefore mandatorily negotiable under the Public Employer-Employee Relations Act (PEERA), and whether ownership of intellectual property is an “inherent management prerogative” and therefore not mandatorily negotiable under an exception in the state law. In a second victory for the KNEA and faculty members, the PERB concluded in February 2007 (.pdf) that ownership of intellectual property was a mandatory subject of bargaining; the PERB therefore found that the university and Regents had engaged in various prohibited bargaining practices and ordered that the KBR and university withdraw its unilateral implementation of the intellectual property policy and meet and confer in good faith with the KNEA on intellectual property rights.

The PERB noted that under Kansas law, an employer is prohibited from willfully refusing to meet and confer with the exclusive representative of employees in a bargaining unit over “conditions of employment,” which include (but are not limited to) such matters as salaries, wages, hours of work, leave, benefits, and grievance procedures. To determine whether intellectual property rights, which are not expressly included in the list of conditions of employment, are mandatorily negotiable, the PERB weighed the interests of the employer and employees “by considering the extent to which the meet and confer process will impair the determination of governmental policy.” To appropriately balance those interests, the PERB looked to three criteria, two of which were relevant here: whether the intellectual property policy “intimately and directly affects the work and welfare of public employees;” and, if so, whether the policy “is a matter on which a negotiated agreement would not significantly interfere with the exercise of inherent managerial prerogatives.” As the PERB noted, the basic inquiry “must be whether the dominant concern involves an employer’s managerial prerogative or the work and welfare of the public employee.”

The PERB concluded that “the topic of intellectual property ‘intimately and directly affects the work and welfare of’ the public employees” of Pittsburgh State. The PERB also ruled that there was no “inherent managerial prerogative” that would “suffer significant interference by negotiating in regard to intellectual property rights.” The PERB dismissed the Regents’ and university’s argument that a meet and confer requirement with respect to intellectual property rights would interfere with the university’s right “to direct the work of its employees,” responding that the issue was not the university’s right to direct its employees’ work but the union members’ rights “regarding intellectual property after it has been created.” Finally, after a long analysis of the meaning of the word “willfully,” the PERB concluded that the Regents and university “intentionally, voluntarily, or deliberately” unilaterally adopted the policy and refused to meet and confer about the policy with the union, and therefore engaged in prohibited practices under Kansas law. The decision, which was an “initial order,” became a final order (.pdf) after consideration by the full PERB on August 16, 2007.

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